Are They Really Super?

Are They Really Super?


Lawyer advertising that use phrases such as “Super Lawyers™”, “Rising Stars™”, “Best Lawyers™”, “Best Law Firms™”, “America’s Leading Lawyers™”, “Top Ranked™” or other similar phrases, just took a hit, and in of all places, New Jersey. It seems that the number of complaints by other lawyers about those advertising such laurels and accomplishments not being worthy of such titles resulted in a May 4, 2016 Notice to the Bar from the New Jersey Supreme Court Committee on Attorney Advertising[1]. These coveted badges, icons and logos appear on letter head, business cards and websites. It seems like a day does not pass without receipt of an email offering me the opportunity to be named the “Best Premises Liability Lawyer in Oklahoma” on someone’s list. However, a drawback has been that I can never figure out whether the price quoted was in euros, pounds, sterling or some other monetary denomination I was unfamiliar with and whether the publisher of this accolade was indeed going to publish it in the United States at all. I have even had similar discussions with lawyers who are under the misconceived notion that they are the only lawyer that is receiving such emails.

Putting all practical concerns about how to spend your marketing dollars aside, and there are many ways to do that, there is the ever present ABA Model Rule 7.1 to govern our choices:

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. [2]

The ABA Eye On Ethics, July 2016 blog article deals with the issue of LinkedIn and what a lawyer should do when a client, former client, friend, family member or competitor rates you for a skill which you in fact do not have.[3] This should be cause for concern for all of us to go review the reviews we receive. I readily admit I do not practice in certain areas of law and would be shocked if someone gave me a high rating for those skills on any website. However, in this article we are dealing with the issues of the super and the not so super.

The business of lawyer advertising has trended upward exponentially with the use of the internet. Consequently, we should not be surprised that many of the selection businesses for honors and accolades are owned by the same company that wants to market and build your website, blogs, electronic newsletters. Some may recall these companies started out in lawyer advertising by selling law firms and lawyers top placement on web searches and quick response buttons.

I must confess that I trumpet my honors and accolades on my web page and pay the piper to do so. A quick web site search of Oklahoma law firms in all types of practices, small and large alike, reveals that everyone else seems to be doing the same thing. Here is the rub, what do the public consumers of professional services believe when they see this advertising portrayed as an honor? In order to protect against misrepresentation, we fall back on ABA Model Rule 7.1. The Oklahoma corollary contains the same language.[4] Interestingly, New Jersey’s version of the rule contains an official comment requiring:

As a preliminary matter, a lawyer who seeks to advertise the receipt of an award, honor, or accolade that compares the lawyer’s services to other lawyers’ services   must first ascertain where the organization conferring the award has made “inquiry into attorney’s fitness. The rating or certifying methodology must have included           inquiry into the lawyer’s qualifications and considered those qualifications in       selecting the lawyer for inclusion.” This inquiry into the lawyer’s fitness must be   more rigorous than a simple tally of the lawyer’s years of practice and lack of disciplinary history. Pursuant to Rule of Professional Conduct 7.1(a)(3)(ii), the basis for the comparison must be substantiated, bona fide and verifiable.[5]


Oklahoma does not have comparable commentary but does include comments concerning the prohibition against misleading but truthful statements or truthful reports. Oklahoma also contemplates a disclaimer but does not provide required elements.[6] However, the New Jersey trend may be coming to all states as the need for rational limits seems to raise its head. Consequently, vetting the awarding organization that has chosen you or your firm before you give them a check makes sense. New Jersey adds additional steps, once this has been verified, you then need to display beside your badge, icon or referred to honor in close proximity to the reference a description of the standard or methodology of which the award is based, the name of the comparing organization and finally a disclaimer that no aspect of this advertisement has been approved by the Supreme Court of New Jersey.[7]

So for the time being, you are safe to squander your budget as you wish. However, pay close attention to future guidance issued by the General Counsel’s office and OBA. Since we don’t practice in New Jersey, I am not aware of what gave rise to the ground swell of complaints that some lawyers weren’t super, rising, best or leading. It could have been one of several reasons, such as; (1) those who simply did not have the money to advertise those accolades; (2) those who were jealous for being over looked for honors; or (3) legitimately complaining that those receiving honors were not worthy. Until the Oklahoma lawyer advertising ethics landscape changes, we will be pursuing those badges, icons and logos with the rest of you; it is sort of like pursuing stars, points and miles except that you don’t get a free trip, free room or free latte and maybe not even a new client. But I did find a Pokemon in the parking lot.

End Notes:


  1.     New Jersey Bar Assoc. Advertising Committee available at , 2016-07-14.
  2.    ABA Model Rule 7.1
  3. social- media-websites
  4. Okla. Stat. tit.5, App. 3-A §Rule 7.1 (2008)
  5. notices/2016/n160518a.pdf
  6.   Okla.Stat.tit.5 App 3-A§ Rule 7.1 (2008), supra at comments 2 & 3
  7. New Jersey Assoc., Supra.



Byline: Michael W. Brewer is an attorney, founder, and partner of Hiltgen & Brewer, PC in Oklahoma City, Oklahoma. To contact Mike, email, call (405) 605-9000 or tweet him at @attymikeb. For more information, please visit












           Just the other day my biggest storage problem was sufficient storage space, maintaining files for five (5) years after closure and what to do with file storage during the occasional flood or tornado. Recently, our firm’s business manager asked me if we could do something about the stacks and stacks of DVDs, CDs and thumb drives we were going through sending documents to clients, consultants, experts and opposing parties. Apparently, we send those out and never get them back. Adding to the expense issue, we also receive them from outside sources, print them, upload them to our hard drive, put them in the file and leave them there. This is not a paperless office by any stretch of the imagination even though our IT consultant regularly advises us to purchase more hard drive space. All this leads me to purchasing my little piece of the cloud.

          But how do I go about it, everyone has heard the horror stories of placing their client files and work product in the cloud and having the cloud owner (who knew before now that humans could create and own clouds) delete those files unintentionally during a “purge”. I note that our firm has a couple of 2 terabyte external hard drives on the shelf that have been used for various past significant e-discovery projects. Those cost money. Also, shortly after hurricane Katrina we developed with our IT provider a disaster backup system that is double redundant. More added cost. Our firm and clients have retained e-discovery experts who allowed us for a short time to rent a piece of their cloud for e-discovery projects. Even more expense added to the bottom line. Can owning a piece of the cloud really provide a less expensive alternative? I am not sure if these issues present the same expense problems for big law that they do for middle, small and solo firm practitioners but here is some guidance on the way to your cloud from those you can trust. Rather than the Stones, let’s begin with the ABA.

The ABA Legal Technology Resource Center on their cloud computing for lawyers page broadly defines cloud computing as a category of software and services delivered over the internet rather than installed locally on a user’s computer.[2] The cloud offers a variety of potential advantages including:

  • Low upfront costs
  • Easy mobile access
  • Simple setup and configuration
  • Built-in disaster preparedness

This seems to solve a lot of the expense problems earlier identified. The ABA Legal Technology Resource Center has also collected a variety of resources easily accessible from their site for you to review.

Next, we look to the OBA for some guidance. Please do a search at for cloud computing. You will find references to Ethics counsel articles by Travis Pickens, former Ethics counsel and practice management tips from Jim Calloway and Debbie Foster. While instructive on this issue, please keep in mind these were published before any security standards were being considered and prior to many states providing ethical guidance for cloud use by attorneys.

Always quick to jump on a blog for information, I turn to Jeff Bennion’s blog article on Above the Law.[3] Jeff, a practicing San Diego solo attorney, writes “I think that cloud computing is one of the biggest technology revolutions in recent history. It gives us the ability to share large files, backup and sync files across multiple computers, and undelete things. As a solo, it’s not just convenience, but it also has huge implications for me- I can grow my practice or shrink my practice without having to buy storage servers and enter into IT maintenance contracts…as we all know, the way lawyers store our confidential files is highly regulated. Cloud storage means that your files are stored on someone else’s server in some other location and you remotely access those files. So, can you or should you do that?”[4] Jeff’s answer is that it is mostly ethical and he refers to the ABA guide chart of ethics opinions. About half the states have said yes with caveats such as, attorneys must use “reasonable care” in using the cloud. By the way, Oklahoma has not yet provided an ethics opinion in this regard.

Jeff looks at an Ohio ethics opinion for an example, as it provides four factors to evaluate the appropriateness of the cloud including:

  1. Competently select a vendor.
  2. Preserve confidentiality.
  3. Supervise cloud vendors.
  4. Communication with the client.

These seem to be vague factors and interestingly, California says you can store client data on the cloud without taking additional precautions only if it is urgent. Jeff’s article seems to indicate that there are certain cloud storage providers that are not going to satisfy an attorney’s ethical requirements for storing client data in the cloud. From Jeff’s blog I learned about the Legal Cloud Computing Association (LCCA)[5] which in March of 2016 after a comment and discussion period, published a set of standards for how lawyers should handle cloud computing issues. Keep in mind the LCCA guidelines are not mandatory but they are definitely something you should consider. The LCCA security standard table of contents is a good starting point before taking on the standard themselves. Don’t worry they are not that long.[6]

These Cloud Security Standards were also announced at the 2016 ABA TechShow in March of 2016. According to Fiona Finn, a cloud blogger at Clio the twenty-one (21) security standards were expertly crafted and vetted based on current and future needs of lawyers and their clients. Based on impending and current issues and threats, the version now available online addresses cyber security, client data management, encryption techniques and other constructive information for lawyers.[7] Understand that the LCCA was formed in 2010 by leading cloud computing software providers but not by all of them. Consequently, some of those highly marketed names we see in our email inbox, do not meet the LCCA requirements and/or are not part of this group. I cannot comment on how competition has affected who does and who does not belong. It seems like the best path to proceed is for a legal practitioner to first check for a state ethics opinion, then look for a vendor who is compliant with LCCA security standards, and then cost shop vendors. A LCCA certification for vendors does not seem to exist in this regard. Is this a complete and inexpensive solution to the issues facing legal practitioners who tire of killing trees; mostly but not completely. The more our small firms attempt to go paperless, it seems like the more paper we create. As I worked out this draft article, I am reminded the other expense I hope to cut is the secure paper shredding and file storage vendor costs. I am not sure we will ever get to a best practices level on file storage, but cloud storage seems to be a step in the right direction. Now, don’t hang around ‘cause two’s a crowd, on my cloud baby…[8] Get your own cloud, before they are all taken.


  1. Jagger/Richards, Decca 1965
  3. Can Lawyers Use the Cloud? Should Lawyers Use the Cloud?/AboveTheLaw/JeffBennion 2-23-2016
  4. Id.
  7. 3-16-2016
  8. Jagger/Richards, Decca 1965



Byline: Michael W. Brewer is an attorney, founder, and partner of Hiltgen & Brewer, PC in Oklahoma City, Oklahoma. To contact Mike, email, call (405) 605-9000 or tweet him at @attymikeb. For more information, please visit









Byline: Michael W. Brewer is an attorney, founder, and partner of Hiltgen & Brewer, PC in Oklahoma City, Oklahoma. To contact Mike, email, call (405) 605-9000 or tweet him at @attymikeb. For more information, please visit




          Just when you thought low bar passage rates nationwide were the problem for the profession, another tiger is crouching at your door. The landscape for delivery of legal services future is rapidly changing, effecting our chosen profession and is coming to your computer or smart phone. The ABA Commission on the Future of Legal Services is on the move concerning Alternative Business Structures (ABS)[1]. As the ABA moves forward to provide a guide for states in the regulation of ABS (also non-traditional legal service providers), aggressive entities, whose primary function is to provide only legal services but whose ownership may not only be lawyers, are entering markets throughout the United States. Among the Rules of Professional Conduct stands Rule 5.4, which prohibits non-lawyer ownership of law firms, non-lawyer management of law firms and sharing of fees with non-lawyers (except under very limited circumstances). Currently, only two jurisdictions permit forms of ABS that are exceptions to Rule 5.4. Limited exceptions exist in accordance with 5.4(b). Oklahoma also regulates the legal practice in accordance with Rules 5.4 and 5.5. By the time this article reaches publication, the comment time provided for by the ABA will be closed (notice and comment were only allowed for in about a two to four week time frame). Additionally, only ABA members could access the proposal on the ABA website.

Recently relying on the proposed ABA resolution, companies like AVVO ( have entered into fixed fee telephonic legal advice services in eighteen (18) of the nation’s most populace states. AVVO’s CEO has a goal to be the “ of legal”.[2] The rub here is that the “fixed” fee structure used by AVVO includes a sliding scale marketing fee paid to AVVO. Clients of AVVO choose a service and an attorney from a provided list and make full payment up front through AVVO’s website. AVVO then notifies the attorney who contacts the client directly and completes the service. Once a month, AVVO deposits earned fees into the attorney’s operating account. As a separate transaction, AVVO withdraws from the account a per service marketing fee. The fee varies in amount according to the service provided.[3] Since this scenario does not appear to be a flat or fixed fee situation and the fee, including marketing fee, vary by service provided, this looks a lot like fee sharing with a non-lawyer.

Significantly, the ABA Commission on the Future of Legal Services is considering ABS structures that allow ownership investment by non-lawyers at all percentages and active participation and operations of legal service entities by persons who are not licensed lawyers.[4] Other issues are raised when dealing with multi-disciplinary practice but that is not the point of this article. Although similar, these are not the same questions that were raised when pre-paid legal services came on the scene. Those issues were resolved by the ABA and in Oklahoma early on.[5]

In the near future, will traditional attorneys and law firms compete with ABS legal service providers on price and quality? AVVO CEO, Mark Britton claims “we put the needy consumer together with the needy lawyer.”[6] While it may be true that there are consumer needs for legal services that are not being met by the current law firm model, does a or Tinder App scenario really provide a good solution.

If the client cannot afford a $150-$250 an hour lawyer, but can afford a flat fee for the simple task they need accomplished, will they still get the same level of quality and competency? If this is the direction of the profession, then does it behoove current law firm ownership to move toward ABS structures or multi-disciplinary practices in order to attract a larger piece of the market by providing more services? Does crossing state lines via the internet, even if only for a specified question and response, constitute practicing law in another jurisdiction? Rather than a line of credit at the local bank, does a lawyer now seek passive investor partners or in the case of big law, do they seek financing from a new partner in the firm that may be an investment firm or hedge fund?

Hypothetically, a savvy entrepreneur with a good computer program and internet marketing plan could contract with numerous recent law school grads and successful bar exam takers to provide a web based legal service provider accessible to consumers in multiple jurisdictions. It might even develop into an App you can download to your smart phone. A question that arises is who is there to mentor, guide, supervise, correct or lift up the young lawyers? What keeps the contract attorney from going outside of his area of knowledge or jurisdiction? Who has the client relationship and fee contract? This does not seem like progress toward maintaining professional competency and integrity in providing legal services to clients. By the way, AVVO plans to add many other states to its coverage by the end of the year.[7]

Many of the questions I raise are not new to the profession. Understand that the proposed guidelines from the ABA are aimed at regulating the issues I raise and many others. The next steps in regulation will be taken at the State Bar level. As the legal profession evolves through time and technological innovation, is this a direction that will further erode the public view of lawyers as professionals? But then again, I was worried about bar exam integrity and scaling of scores; and after all, I’m just a caveman. This world frightens and confuses me! Sometimes I just want to get off LinkedIn and other social media, get my data out of the cloud, throw away my iPhone 6 and go fishing. But I do know this…the times they are a changing.[8]



  1. Memorandum from The ABA Commission on the Future of Legal Services to the ABA Entities, Courts, Bar Associations (state, local, specialty, and international), Law Schools, Disciplinary Agencies, Individual Clients, and Client Entities (Apr. 8, 2016)(on file with the ABA Commission).
  2. Robert J. Ambrogi, (Posted May 1, 2016).
  3. Id.
  4. Memorandum from The ABA Commission on the Future of Legal Services to the ABA Entities, Courts, Bar Associations (state, local, specialty, and international), Law Schools, Disciplinary Agencies, Individual Clients, and Client Entities (Apr. 8, 2016)(on file with the ABA Commission).
  5. ABA Formal Ethics Opinion 85-F-102, December 16, 1985, available at (citing to ABA Formal Ethics Opinion No. 332, August 1972).
  6. Robert J. Ambrogi, (Posted May 1, 2016).
  7. Id.
  8. Acknowledgement to SNL and the late great Phil Hartman.


Byline: Michael W. Brewer is an attorney, founder, and partner of Hiltgen & Brewer, PC in Oklahoma City, Oklahoma. To contact Mike, email, call (405) 605-9000 or tweet him at @attymikeb. For more information, please visit


Seems like a logical leap from cyber security to bar passage rates for an Open & Obvious blog topic, right? Like many of you, I have not thought about bar passage rates or the bar exam for several years, exactly thirty years this summer for me. However, I do recall reading many articles, blog posts and Facebook posts over the past few years debating the meaning of increasingly lower bar passage rates nationwide. This issue seemed to explode on the scene after the summer 2015 bar exam results became public. Mind you this is not an Oklahoma law school or Oklahoma bar exam issue but is a nationwide debate.

          After all, the students take the exam and the students pass or fail the exam.  Is it a lack of preparation on part of the law students? The decision to attend law school and take a bar exam is on the individual, not an institution or board of examiners. Therefore, all law students must decide whether the rigors of law school are something they are willing to take on and devote the time to passing the bar exam. Many 3L students are investing in multiple bar preparation courses at extensive costs to themselves and their families in order to support their efforts to pass the bar on the first take.

You can find article after article pointing the finger at the law schools. These articles suggest the institutions are facing financial pressure due to the low enrollment rates Between 2010 and 2014, 1L enrollment fell by 28%, a record low since 1988.  Therefore, some theorize law schools are lowering their admission standards in fear of losing money.[1] Those who blame the law schools argue if you want students to pass the bar, heighten your admission standards and allow for smaller classes, even if this means the closing of some law schools.[2]

Perhaps, it is more effective to examine why enrollment is down.   Maybe less students are attending law school because it is no longer a sound financial decision.  After the economic downturn in 2008, corporations have tightened their belts on legal matters, and law firms, in turn, had no choice but to reduce hiring rates.[3] Law students find themselves in a position where the average debt is $140,616 per average law school graduate.[4]

In fact, according to a U.S. & News article, most students spend a prospective year’s salary on just one year of law school.[5] As to Oklahoma, one survey estimates the average debt for 71% of the 2015 graduating class of Oklahoma City University School of Law is $121,607.  Oklahoma University was $82, 818 for 78% of their 2015 class.  The University of Tulsa was $82,954 for 100% of the 2015 class.[6] It seems to me that the biggest problem for these law graduates then is the mountain of debt that exceeds what 95% of them can hope to make in the first year as a new lawyer or for the 50% of the law school class that determines not to practice law and go into some other field. Essentially these new professionals will leave law school with a mortgage to pay for a home they don’t live in.

Since most law schools are a for-profit business, the bar passage rate can also be analyzed from their business perspective. Bar passage rates may present simple market economics.  As the supply of a good decreases and demand stays the same, the good becomes more valuable.  Since prospective law students have realized law school may not be a sound investment in their financial future, law students (the goods) have decreased.  However, law schools may target a certain class size because tuition dollars support the business.  Law students are in turn more valuable to the institutions forcing the admission standards lower. Yet, as the law schools continue to produce new graduates, the legal market is operating in the opposite direction.  Consequently, there are too many law students and too few legal jobs.[7] [8] Bar admission standards act as a filter in this case but that does nothing for the student.

This is a trending problem that has even led to a law student suing her institution for fraud, misleading employment statistics; she lost.[9] From a law firm economic standpoint, many small and medium sized firms are now only hiring law graduates that have already taken and passed the bar exam. The office sharing and solo practice ranks are growing as law firm sizes hold steady or decrease. I recall being told, many years ago, there were too many lawyers, not enough jobs and that the lawyer market simply was not large enough to take in all the graduates of the then four law schools located in Oklahoma. Now there are three. That should not deter a young Atticus Finch from living their legal profession dream. But can this problem really be addressed by the states Supreme Court, the ABA or even the National Conference of Bar Examiners?

According to a popular legal blog, the American Bar Association is taking steps to address the bar passage rates.[10] The ABA Section of Legal Education and Admission to the Bar have proposed new accreditation standards that will soon be public for comment.  These standards include ending the ban on paid externships, new bar passage standards for institutions, and new attrition limitations.

          According to the National Conference of Bar Examiners, the average score on the multiple-choice portion of the July bar exam fell 1.6 points in 2015 from the previous year, reaching record lows.[11] When the bar passage rates were surprisingly low in July 2014, many placed the blame on the software “glitch” that affected many test takers. Now, that the results continue to decline, is it the exam itself?  What about the administration of the exam?[12]

Beginning in February 2015, civil procedure was added to the multiple-choice section, MBE, of the bar exam.  Is adding a seventh subject on the bar exam making the exam more difficult? Most states had already incorporated civil procedure into the state questions.

Is having a rigorous test really a problem?  Not according to Oklahoma Supreme Court Justice Steven Taylor, “the purpose of the bar examination is to screen applicants in such a way to protect the public and to protect the reputation of the legal profession. The bar examination should not be easy …” So maybe the test isn’t to blame, maybe the test is working and performing what one articles calls “a consumer protection” function, guaranteeing the “quality” of attorneys.[13]

On March 7, 2016, in a split 5-4 decision, the Oklahoma Supreme Court made a move that apparently lowers the bar exam standards.[14] [15] Specifically, Oklahoma is adjusting the acceptable MBE scaled score in response to the declining bar passage rates. In the dissenting opinion, the Honorable Justice Taylor pointed out how the Oklahoma Board of Bar Examiners unanimously recommended no change to the testing standard.  The three law school Deans also agreed that no change should be made at this point. Despite this, Oklahoma became the first state to adjust scoring standards.  But, last year, California shortened their bar exam from three to two days. [16] The Oklahoma bar passage rate breakdown by law school for February 2016 is not yet available but I am informed that passage rates were at or near historic norms.






Byline: Michael W. Brewer is an attorney, founder, and partner of Hiltgen & Brewer, PC in Oklahoma City, Oklahoma. To contact Mike, email, call (405) 605-9000 or tweet him at @attymikeb. For more information, please visit Also, Sharity Parham, associate attorney at Hiltgen & Brewer and 2015 Oklahoma bar admittee who contributed to this article can be reached at





Did My New Friend Just Take My Data?

Now that we’ve got you making new friends on the internet, using social media, blogging, and being all techy, here comes the hard truth. Not all internet friends have friendly intentions and you attorney tech users are sitting on a lot of confidential and privileged data that makes you a target. Like most of you, I probably receive 100 emails and promotional materials through snail mail for cyber security and data breach seminars and services each week. Some of you may recall the multitude of seminars concerning the millennial bug expected for the year 2000. An entire cottage industry of seminars and how tos sprung up in the legal community. Unlike the millennial fears, data breach, hackers, and spammers are already upon us.

The number of authentic appearing emails that seek your private information or entry into your server have increased. Since most lawyers and law firms handle their client’s confidential information, including things like tax records, birth dates, social security numbers and other proprietary and confidential information on their local computers, these threats are real. More and more corporations and insurance companies are requiring their outside law firms to implement and follow electronics/computer security policies. The use of unencrypted emails and non-secure cloud sites such as Dropbox, Hightail and others are frowned upon by many. Clients are requiring their attorneys use encrypted emails and encrypted thumb drives when transmitting data. The use of personal cell phones, tablets and laptops for transmitting business emails carrying client data creates new and heightened risks. Passwords and remote wiping are a must. Use of Gmail, Yahoo mail and similar non-business only email portals requires identification of your emails as attorney or law firm generated. Use of business only domains with appropriate disclaimers and return information is encouraged.

The use of public Wi-Fi in hotels, airport, coffee shops or even on airplanes for business or personal use is also dangerous. Rules prohibiting use of public Wi-Fi for business purposes need to be in place and enforced. A recent article in USA Today by Steven Petrow concerning this is worth your time to review. I got hacked mid-air while writing an Apple-FBI story. (

Recent surveys by cyber security analysts reveals that even when employees know they should not give out their passwords over the phone, somewhere around 50% still do. A simple phone call from someone identified only as Joe or Joanne at IT and otherwise well trained employees disclose their password without knowing who is on the other end of the line. Written policies and frequent training are necessary and sometimes required by clients of their vendors.

Another important piece to the electronic/computer policy is the backup plan. Most law firms have implemented disaster back up plans since hurricane Katrina made it painfully clear that existing back up plans were insufficient. Since we live in the heartland of tornadoes, ice storms, power outages and earthquakes a proper back up and disaster plan is also necessary. Every now and then, test it, just to make sure it works. Can you actually retrieve your backed up data? Who has access to it? Is it stored on the cloud; is it encrypted; is the hard storage location in a hardened bunker? These are a few questions you might ask. If you never try to recover your backups, you might not know that a well thought out recovery plan simply does not work.

Spam blockers and filters seemingly only work on the most ordinary emails and sites such as gambling, coupons and pornography. Things still slip by and employees still find ways around your filters and blocks. After all, shopping must be completed. However, these type sites are regular carriers of viruses and hacks. Employee education is a must in this regard.

These days, data breach and system security are extremely important issues to clients and should be to you. The hackers are getting more sophisticated. They do not care who you are as they are just testing IP addresses in some random fashion looking for data and creating havoc. If you do not have a dedicated IT department, then you should have a regular IT contractor who is familiar with your system and can assess your risk. Vendors in this field are growing and the need is real for solo practitioners, small firms, medium firms and large firms alike. Many resources exist for this type of prevention information at locations such as the OBA, ABA, Legal Tech New York 2016 and International Association of Privacy Professionals. Many more vendors are out there and you can visit their seminars and websites to learn more about their services. Just make sure it is a legit site and organization and not someone catfishing you for passwords and data.

Since the initial draft of this article for the OCBA Briefcase in February, the issue with Apple’s denial of U.S. enforcement request that Apple create a hack/backdoor for its locked products has arisen. Several key privacy issues are implicated and public opinion is split. A Reuters News poll released on February 24, 2016 indicates 46.3% of people polled agree with Apple’s decision to oppose the court order, 35.5% disagree and 18.3% are undecided.( While this will now be decided in the judicial system, it raises the question for each individual user of a smart phone, computer or tablet whether your private and even encrypted information or communications are really private.

Byline: Michael W. Brewer is an attorney, founder, and partner of Hiltgen & Brewer, PC in Oklahoma City, Oklahoma. To contact Mike, email, call (405) 605-9000 or tweet him at @attymikeb. For more information, please visit










So to start out 2016 I went to see the new Star Wars movie. Contrary to my prior blog statements, I was quickly persuaded that there really is no success magic to a Trilogy. I mean if you can make a billion dollars each year from releasing a “new” episode and plan on doing it every year for five years then go for it. It seemed to work out well for Rocky and Dom Toretto. Since I don’t get paid by the OCBA for contributing this column, I’ll just speed on past my own advice and keep on adding new posts. Or if I win the lottery,  I might just disappear like a cetain Jedi.

While the question that is the title of this post reminds many of us of those awkward middle schools years, this is a perfectly reasonable question for adult professionals to ask.  For lawyers, clients, vendors, witnesses, jurors, and judges the answer may be no in many situations.  Attorneys use social media for discovery, professional marketing, and personal use.  Adding someone as a “friend” or commenting on a post is as routine as sending a discovery request or taking a deposition.   But an attorney should approach these activities with caution.  Refer to the OBA Standard of Professionalism and Rules of Professional Conduct, including ethic opinions, as your touchstone.

When discovery involves social media, an attorney needs to be aware of the rules and steer clear of pitfalls.  Many attorneys face issues when trying to obtain a party’s electronically stored information (“ESI”) on a social media account because the party has the ESI set to “private”.  In the past, courts held an individual’s information marked “private” was only discoverable if the party moving for the information could make a threshold evidentiary showing that the information marked “public” contained information that contradicted the plaintiff’s complaint.  This approach was criticized because a party should not be able to shield relevant evidence simply by turning their social media settings on private.  Fortunately, courts now take the approach there is no special protection for information on social networking sites, whether the information is set to “private” or “public”.  Rather, discovery requests for ESI must be tailored “so that is appears reasonably calculated to lead to discovery of admissible evidence.” Therefore, information marked “private” or “public” is discoverable.  But burdensome requests for information such as credit cards, facial recognition data, IP addresses, phone numbers, family, and religious views are considered irrelevant ESI.

Further, a common pitfall is to try to circumvent the above discovery rules with simplicity.  For example, when trying to obtain a party’s ESI, an attorney may think it is okay to add that party as a “friend” on social media or pretend to be someone else to gain access to “private” ESI.  Although the discovery is taking place in the virtual world, the act is the same as approaching a party that you know is represented.  This activity constitutes a violation of the Model Rule of Professional Conduct (“MRPC”) 4.2. Remember, you can’t get your paralegal or secretary to do this for you either.  MPRC 5.3.   Another recent but trending issue is attorneys’ use of social media personally and for professional marketing. Most state bar associations and the American Bar Association have addressed the issue of social media and ethics. See Social Media Ethics Guidelines of the Commercial and Federal Litigation Section of the New York State State Bar Association, (June 9, 2014) available at; ABA Formal Opinion 466, April 24, 2014; and 10 Tips for Avoiding Ethical Lapses When Using Social Media, (January 2014), available at by Christina Vassilio Harvey, et al.

According to ABA Formal Opinion 466, whether it’s for advertising or personal use, the ABA advises attorneys to be weary of social media sites that send automatic or batched invitations to people identified in an attorney’s e-mail contacts.  This activity may be a violation of MRPC Rule 7.3, solicitation by a lawyer to provide legal services for pecuniary gain.  Websites like LinkedIn may send invitations to persons who fall within Rule 7.3.  Although the attorney may be unaware of the automated activity, the ABA states every invitation that goes out, including the reminder notification of the email, may constitute a separate violation of 7.3.  As well, think twice before “friending” judges.  In Oklahoma, “with restrictions, a judge may hold an Internet social media account. A judge who owns an Internet social media account cannot add court staff, law enforcement officers, social workers, attorneys and others who may appear in his or her court as ‘friends’ on the account. A judge may hold a social networking account that includes as ‘friends’ any person who does not regularly appear or is unlikely to appear in the judge’s court as long as he does not use the network in a manner that would otherwise violate the Code of Judicial Conduct.” Judicial Ethics Opinion 2011-3, 2011 OK JUD ETH 3.  For those of you who were social networking friends with judges before they were judges, a disclosure requirement exists.

In addition, there are more and more occurrences where law firms and their attorneys have done nothing to violate any ethical or firm rules but end up facing unthinkable consequences due to a YouTube message, simple post, or tweet. See Goldberg Segalla Fires Attorney after YouTube Rant, (December 8, 2015), available at by Michael Petro.  This link is another example of the need to be cautious when social media is involved.   Even if an attorney is using social media in their individual capacity, laypersons do not see the attorney as an individual and the attorney’s activities and opinions may be associated with their practice and law firm. From this report, we also learn that football (soccer) is extremely important to English culture, if not the embodiment of class warfare. I personally know many lawyers at this law firm and they are an extremely professional and ethical firm. Like you, they could not have foresaw the backlash to a YouTube interview and personal social media post by one of their United Kingdom counsel. Moreover, your clients select you as an attorney, in part, for your decision making skills.  A sports or politically charged social media rant might be free speech and perfectly ethical but can reflect negatively on your decision making abilities and demonstrate your inability to grasp that your client or peers may be fans of the other teams, candidate or policy.

So we can be friends, but should we be friends and is it ok for me to tell my friends what I’m thinking at any specific moment, are all questions that should be asked and answered before posting, whether for workplace or personal use. At the very least, think like an attorney before you like, tweet, or share.


Byline: Michael W. Brewer is an attorney, founder, and partner of Hiltgen & Brewer, PC in Oklahoma City, Oklahoma. To contact Mike, email, call (405) 605-9000 or tweet him at @attymikeb. For more information, please visit